Scalia and Thomas: Originalist Sinners

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http://www.prospect.org/cs/articles?article=scalia_and_thomas_originalist_sinners

Scalia and Thomas: Originalist Sinners

How Thursday's ruling on school integration gives the lie to the two justices' supposedly devout "originalism."


Scott Lemieux | June 29, 2007 | web only


Yesterday's regrettable decision by the Supreme Court to strike down school integration programs in Louisville and Seattle, in addition to being bad on the merits, exposes some tensions and internal contradictions within the conservative jurisprudence currently in ascendance in the federal courts.

The most obvious contradiction is how much more seriously the Court's conservatives take racial discrimination when it involves white people. This was particularly glaring in the case of the late Chief Justice William Rehnquist, who opposed Brown v. Board of Education as a Supreme Court clerk and urged Barry Goldwater to argue that the 1964 Civil Rights Act was unconstitutional, but suddenly believed in a more robust equal protection clause where affirmative action was concerned. But this can be seen in many cases -- it's rather hard to square, for example, the conservatives' alleged commitment to a "color-blind" Constitution with their willingness to wink at even the most egregious discrimination in jury selection.

But another contradiction has to do with the grand theories of constitutional interpretation that conservatives allegedly adhere to. We are often informed (sometimes by the Justices themselves) that the Court's conservatives have a more legitimate jurisprudence because their "originalist" philosophy prevents them from simply making decisions that follow their political views. The affirmative action jurisprudence of Antonin Scalia and Clarence Thomas, however, makes clear that "originalism" can easily be stretched or even ignored entirely if it interferes with strongly held policy preferences.

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This is not to say that originalism never has any effect on the jurisprudence of Thomas and Scalia (the former in particular). It makes them more likely to directly overturn precedents rather than (in the style of Roberts and Alito) merely refrain from seriously applying them. And in some cases, such as those involving punitive damages, Scalia and Thomas have used originalist methods to reach results that aren't, in fact, congenial to the current Republican coalition. Still, this commitment is very sporadic, and as yesterday's school integration cases remind us, a commitment to grand legal theory rarely constrains a judge when a strongly held political commitment is involved.

Yesterday, this sporadic commitment produced a decision that will contribute further to the disgraceful and ongoing segregation of America's schools. It is a cruel irony that a jurisprudence that supposedly lavishes attention on historical roots would perpetuate segregation and inequality in the name of a constitutional provision whose central purpose was to uproot it.